Plaintiff filed suit against defendant for an alleged water an soil contamination. Plaintiff hired two expert witnesses and the defendant filed motions to exclude their testimony.
Facts: This case (Cedar Lodge Plantation, LLC et al v. CSHV Fairway View I, LLC et al – United States District Court – Middle District of Louisiana – December 23, 2016) involves a contaminated property. The plaintiff (Cedar Lodge) filed a lawsuit against the defendants (Fairway View), claiming that they were responsible for the contamination of waterways, groundwater, and soil on their property, which has caused it to be unsuitable for use, development, and/or sale. In order to prove their case, Cedar Lodge hired two expert witnesses: 1) Mr. Suresh Sharma (Environmental Engineering Expert Witness) and 2) Mr. Ronald Ferris (Civil Engineering Expert Witness).
Mr. Sharma was hired to determine if the heavy metals exceed Risk Evaluation and Corrective Action Program (RECAP) standards established by the Louisiana Department of Environmental Quality (LDEQ) and to determine any potential sources for the contamination in the pond and whether there were any regulatory violations. Mr. Ferris was hired to determine the adequacy of Fairway View’s sewage system and to establish this property as the source of the alleged contamination.
Fairway View has filed a motion to exclude the testimony of these experts.
Discussion: In order to determine the extent of the alleged contamination, Mr. Sharma reviewed analytical and sampling reports as well as affidavits of fact witnesses. After that, he performed a trend analysis with those results. Then, he collected sludge and water samples and tested them. He then determined that the concentrations of the heavy metals fell below the RECAP threshold for for finding any human health risk. In addition, he determined that the source of the discharge from the Fairway View apartments was the cause of the potential contamination on the Cedar Lodge property. However, at his deposition, Mr. Sharma stated that although the heavy metals concentration fell below RECAP standards, some samples exceeded Toxicity Characteristic Leaching Procedure (“TCLP”) standards for acceptable lead and chromium concentrations.
Fairway View argues that Mr. Sharma’s testimony will not assist the trier of facts because his opinion lacks proper methodology and is not reliable. They state that he should have performed further testing using the TCLP and that makes his testimony unreliable. Cedar Lodge argues that Mr. Sharma only pointed out that heavy metal values found exceed Step one of the TCLP.
The court opined that Mr. Sharma’s methodology for testing sludge samples and then comparing them to RECAP standards was reliable methodology. However, since he did not complete the TCLP process, any testimony discussing the TCLP would be speculative and are therefor not reliable or helpful to the jury.
Regarding Ronald Ferris, Fairway View argues that he based his opinions on inappropriate methodologies, which makes his opinions unreliable. In addition, they seek to exclude any testimony by Mr. Ferris that discusses the moral and fiduciary responsibility of Fairway View.
The court opined that Mr. Ferris will not be allowed to discuss the moral and fiduciary duties of Fairway View. In addition, Mr. Ferris will not be allowed to testify whether the sewerage system was in compliance with the Sanitary Code and Ten States Standards.
Conclusion: The motion to exclude the expert witness testimony of Mr. Sharma and Mr. Ferris is granted in part and denied in part.